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infringement of the right to vote.”
(Fifth sentence of para [37] of New National Party)
[73]
“What is more, the right cannot be exercised in the
absence of a legislative framework. That framework
should seek to enhance democracy, not limit it. To do
so, it needs to draw all citizens into the political
process. Regulation, which falls short of prohibiting
voting by a specified class of voters, but which
nevertheless has the effect of limiting the number of
eligible voters needs to be in reasonable pursuance of
an appropriate Government purpose. For a Court to
require such a level of justification is not to trample on
the terrain of Parliament but to provide protection for
a right which is fundamental to democracy and which
cannot be exercised at all unless Parliament enacts an
appropriate legislative framework.”
(The Minority judgment of O’Regan J in New National Party of
South Africa para [122])
[74] Section 9 of the Constitution protects the right to equality. This entails that the
law will protect and benefit people equally and not discriminate unfairly against
people or categories of people.
[75] Using the test into a violation of the equity clause tabulated in Harksen v Lane
1998 (1) SA 300 (CC) it is clear that the differentiation in section 33 of the Electoral
Act is unconstitutional:
a) The provision differentiates between categories of people:
government employees, students, businessmen, holidaymakers and athletes taking
part in international sporting events are accommodated, but the rest (i.e. privately
employed people, aid workers, lecturers, ministers of church etc.) are not. The
differentiation does not bear a rational connection to any legitimate government
purpose. The law will violate section 9(1) of the Constitution if there is no rational
connection between the differentiation and the purpose. As the Constitutional Court
said in para [25] of Prinsloo v van der Linde 1997 (3) SA 1012(CC):
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